American Federation of Government Employees, Local 3690 (Union) and United States Department of Justice, Federal Correction Institution, Miami, Florida (Agency)

[ v63 p118 ]

63 FLRA No. 46

LOCAL 3690






February 18, 2009


Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert B. Hoffman filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator determined that the Agency violated the parties' master collective bargaining agreement, as alleged. The Union excepts to the remedy fashioned by the Arbitrator because it did not include a status quo ante order. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Agency notified the Union of its intent to eliminate four posts on the day watch in the next quarterly roster. The Agency refused to engage in impact bargaining concerning the elimination of the posts because it asserted that the issue was covered by Article 18 of the parties' agreement. See Award at 11. The Union filed a grievance over the Agency's refusal to bargain, which was subsequently submitted to arbitration. The Arbitrator did not set forth particular issues to be resolved.

      As relevant here, the Arbitrator concluded that the Agency's decision to make the roster changes was not negotiable. [n1]  The Arbitrator found, however, that the Agency was required to bargain over the adverse effects of its decision. See id. at 17-18. The Arbitrator refused to order a status quo ante remedy because in his view, doing so would affect management's rights. See id. at 19. Instead, the Arbitrator ordered the parties to engage in impact bargaining over arrangements for adversely affected employees. See id.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the award is contrary to law because the Arbitrator should have required a status quo ante remedy. The Union asserts that the award does not provide a "meaningful remedy" for the Agency's improper refusal to bargain. Exceptions at 1. The Union also contends that the remedy fails to draw its essence from Article 3, Section c of the parties' agreement [n2]  and that the Arbitrator exceeded his authority in "making a determination to relieve the Agency of [i]mplementation negotiations." Id. at 2. The Union also contends that the remedy is "fashioned on non[]fact." Id. at 3. Specifically, the Union states that the Arbitrator erroneously determined that a status quo ante remedy would improperly affect management rights.

B.     Agency's Opposition

      The Agency maintains that the Union's exceptions provide no basis for finding the award deficient. See Opposition at 4-5 (citing AFGE, Council 215, Nat'l Council of SSA, OHA Locals, 46 FLRA 1518, 1523 (1993)). According to the Agency, there is no record evidence to support the exceptions. [ v63 p119 ]

IV.     Analysis and Conclusions

A.     The Arbitrator's Award Is Not Contrary to Law.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Union excepts only to the Arbitrator's failure to provide a status quo ante remedy. However, the Union cites to no agreement provision or case precedent requiring a status quo ante remedy. [n3]  See, e.g., NTEU, Chapter 68, 57 FLRA 256, 257 (2001) (union failed to establish that status quo ante remedy was required). We note that arbitrators are accorded substantial latitude in developing appropriate remedies. See id. at 257. Accordingly, the Union has failed to establish that the award is contrary to law and we deny the exception.

B.     The Award Does Not Fail to Draw Its Essence from the Parties' Agreement.

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3)&nbs